United States v. Toohey

                       UNITED STATES, Appellee

                                    v.

                  Jeffrey G. TOOHEY, Staff Sergeant
                     U.S. Marine Corps, Appellant

                              No. 05-0127

                       Crim. App. No. 200001621

       United States Court of Appeals for the Armed Forces

                       Argued December 7, 2005

                        Decided August 9, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a separate dissenting opinion.

                                 Counsel

For Appellant: Captain Rolando R. Sanchez, USMC (argued);
Lieutenant Commander Eric J. McDonald, JAGC, USN (on brief).

For Appellee: Lieutenant Mark H. Herrington, JAGC, USNR
(argued); Colonel W. K. Lietzau, USMC, Commander Charles N.
Purnell, JAGC, USN, Major Kevin C. Harris, USMC, and Lieutenant
Guillermo J. Rojas, JAGC, USNR (on brief).

Military Judge:   R. E. Nunley




       This opinion is subject to revision before final publication.
United States v. Toohey, No. 05-0127/MC

       Judge ERDMANN delivered the opinion of the court.

       Staff Sergeant Jeffery G. Toohey entered a not guilty plea

to rape and assault consummated by a battery in violation of

Articles 120 and 128, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 920

, 928 (2000).    He was convicted by a panel

composed of officer and enlisted members and was sentenced to a

dishonorable discharge, confinement for twelve years, forfeiture

of all pay and allowances, and reduction to the lowest enlisted

grade.1    The convening authority approved the sentence, and the

United States Navy-Marine Corps Court of Criminal Appeals

affirmed the findings and sentence.    United States v. Toohey, 

60 M.J. 703, 720

 (N-M. Ct. Crim. App. 2004).       We granted review of

one issue and specified three additional issues.2


1
  Staff Sergeant Toohey also entered a guilty plea to adultery in
violation of Article 134, Uniform Code of Military Justice
(UCMJ), 

10 U.S.C. § 934

 (2000). That specification was
dismissed when Toohey was found guilty of the charge of rape.
Another specification alleging assault with the intent to commit
rape in violation of Article 134, UCMJ, was dismissed prior to
pleas.
2
    We granted review of the following issue:

            I. WHETHER THE LOWER COURT ERRED BY HOLDING
            THAT IT WAS HARMLESS ERROR FOR THE MILITARY
            JUDGE TO HAVE RULED THAT IF APPELLANT WERE
            TO PUT INTO EVIDENCE HIS CHARACTER OF
            PEACEFULNESS THEN THE GOVERNMENT WOULD HAVE
            THE RIGHT TO PUT INTO EVIDENCE THE
            PORNOGRAPHIC PICTURES FOR IMPEACHMENT
            PURPOSES.

We specified the following issues for review:



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United States v. Toohey, No. 05-0127/MC

     Prior to affirming a case in which there has been

constitutional error, a reviewing court must be convinced beyond

a reasonable doubt that the error was harmless.   Chapman v.

California, 

386 U.S. 18, 24

 (1967).   Although the Court of

Criminal Appeals found that the military judge erred in his

ruling that defense witnesses on Toohey’s character for

peacefulness could be questioned about whether they were aware


          II. WHETHER THE UNITED STATES NAVY-MARINE
          CORPS COURT OF CRIMINAL APPEALS ERRED IN
          DETERMINING THAT APPELLANT WAS NOT DENIED
          HIS DUE PROCESS RIGHT TO SPEEDY POST-TRIAL
          AND APPELLATE REVIEW OF HIS COURT-MARTIAL
          CONVICTION IN LIGHT OF THE 644-DAY PERIOD
          FROM TRIAL TO CONVENING AUTHORITY’S ACTION,
          THE 146-DAY PERIOD FROM THAT ACTION TO
          DOCKETING THE RECORD AT THE COURT OF
          CRIMINAL APPEALS, AND THE 1440-DAY PERIOD
          DURING WHICH THE CASE WAS PENDING AT THE
          COURT OF CRIMINAL APPEALS.

          III. WHETHER THE DELAY IN THE POST-TRIAL
          AND APPELLATE REVIEW OF APPELLANT’S COURT-
          MARTIAL CONVICTION IS SO EXCESSIVE AS TO
          GIVE RISE TO A PRESUMPTION OF PREJUDICE, AND
          IF SO, WHAT IS THE EFFECT OF THAT PREJUDICE?
          See UNITED STATES V. JONES, 

61 M.J. 80

          (C.A.A.F. 2005).

          IV. WHETHER THE UNITED STATES NAVY-MARINE
          CORPS COURT OF CRIMINAL APPEALS ABUSED ITS
          DISCRETION BY DENYING RELIEF UNDER ARTICLE
          66(c), UNIFORM CODE OF MILITARY JUSTICE, 

10 U.S.C. § 866

(c) (2000), BY HOLDING SUCH
          SENTENCE APPROPRIATENESS RELIEF “SHOULD ONLY
          BE GRANTED UNDER THE MOST EXTRAORDINARY OF
          CIRCUMSTANCES,” AND BY CONCLUDING “THERE IS
          NOTHING SO EXTRAORDINARY ABOUT THIS CASE
          THAT MERITS THE EXERCISE OF OUR ARTICLE
          66(c) POWERS.”



                                3
United States v. Toohey, No. 05-0127/MC

Toohey was facing separate child pornography charges, that court

found the error to be harmless.    Toohey, 

60 M.J. at 717

.   Toohey

asserts that the military judge committed error of

constitutional dimension and that the Court of Criminal Appeals

erred in not testing this error under the constitutional

“harmless beyond a reasonable doubt” standard.   We find that

evidence of Toohey’s character for peacefulness was not so

material to the defense as to be constitutionally required.     The

Court of Criminal Appeals utilized the proper test for

harmlessness and correctly found that the error was harmless.

     Convicted servicemembers have a constitutional due process

right to a timely review and appeal of courts-martial

convictions.   Diaz v. The Judge Advocate General of the Navy, 

59 M.J. 34, 37-38

 (C.A.A.F. 2003).    Toohey asserts that he was

denied due process because there was unreasonable and

unexplained delay in the 2,240 days between the end of his trial

and the date upon which the United States Navy-Marine Corps

Court of Criminal Appeals rendered a decision in his case.      We

hold that Toohey was denied his due process right to speedy

post-trial and appellate review.

61 M.J. 474

 (C.A.A.F. 2005).

                                   4
United States v. Toohey, No. 05-0127/MC

                              BACKGROUND

A.   Character evidence of peacefulness.

      The initial charges brought against Toohey included rape,

assault consummated by a battery, adultery, receiving stolen

property, and two specifications relating to child pornography.

Upon defense motion, the charges relating to receiving stolen

property and child pornography were severed and tried

separately.   The instant case proceeded on the offenses alleging

sexual misconduct.   At trial, the defense moved to prevent the

child pornography and severed charges from being used to impeach

defense character witnesses for good military character and for

peacefulness.   The military judge ruled that the child

pornography could be used as a basis to impeach good military

character witnesses and the defense counsel stated that he did

not dispute that ruling.   As to potential character witnesses on

peacefulness, the military judge ruled that the matter of

possessing child pornography could be inquired into on cross-

examination as impeachment.    Specifically, the military judge

stated:

           [T]here are a series of photographs that are
           in the Article 32 that obviously would be
           attached to the record from the standpoint
           of the Article 32. They are color
           photographs, and they depict rather
           graphically sodomy with young children from
           age 10 purportedly up through 16 or so.

           There are some that are more egregious than
           others. Specifically Investigative Exhibit


                                  5
United States v. Toohey, No. 05-0127/MC

             19, photograph J, which depicts a purported
             14 year-old being anally sodomized and that
             conduct depicted in those pictures is non
             consensual as a matter of law conduct; and,
             therefore, if the defense was to put on a
             character for peaceableness, that would open
             the door for impeachment in that area.

The military judge later added, “I would allow that because it’s

the specific non consensual aspects of those sexual act[s] that

would be what defeats the peaceableness issue.”    Civilian

defense counsel proffered that but for the ruling the defense

would have presented “six or seven witnesses who would testify

that the accused is a peaceful person, military and civilian

witnesses who know him well.”    The defense did not present these

witnesses on Toohey’s character for peacefulness.

      The Court of Criminal Appeals ruled the military judge

abused his discretion in allowing the child pornography to be

available to impeach Toohey’s character witnesses for

peacefulness.    Toohey, 

60 M.J. at 717

.   The court found the

child pornography irrelevant and, even if marginally relevant,

the court concluded it would have been far more prejudicial than

probative.    

Id.

   The Court of Criminal Appeals then tested this

error for prejudice and found none.    

Id. at 717-18

.

B.   Speedy post-trial review and appeal.

      Toohey was sentenced on August 13, 1998.    On June 28, 1999,

the military judge authorized substitute authentication of the

record of trial, and trial counsel authenticated the record on



                                   6
United States v. Toohey, No. 05-0127/MC

August 27, 1999, 379 days after trial.     On May 18, 2000, 644

days after trial, the convening authority took action.    The case

was received at the Navy-Marine Corps Court of Criminal Appeals

on October 11, 2000 and docketed at that court on October 26,

2000, 805 days after trial.

      The Navy-Marine Corps Court of Criminal Appeals granted

eleven motions for enlargement of time to Toohey’s appellate

defense attorney before the defense brief was filed on March 28,

2002 (1,323 days after trial and 518 days after docketing).       The

Government filed an answer brief on December 6, 2002 (1,576 days

after trial and 253 days from submission of Toohey’s brief).

Toohey filed a reply brief on February 6, 2003 (1,638 days after

trial).   The Court of Criminal Appeals issued a published

opinion on September 30, 2004 (601 days after the completion of

briefing).   Six years, one month and seventeen days (2,240 days)

elapsed between the completion of trial and the completion of

Toohey’s appeal of right under Article 66, UCMJ, 

10 U.S.C. § 866

(2000).

                              DISCUSSION

A.   Character Evidence of Peacefulness.

      Toohey claims the military judge’s ruling that prevented

him from presenting evidence of his character for peacefulness

was an error of constitutional magnitude and that the Court of

Criminal Appeals should have utilized the constitutional



                                  7
United States v. Toohey, No. 05-0127/MC

“harmless beyond a reasonable doubt” standard to test the effect

of that error.   Toohey asserts that under the correct standard,

the error could not have been found harmless beyond a reasonable

doubt.   The Government responds that Toohey’s argument on

prejudice is speculative and that the error did not have a

substantial influence on the findings.3   The Government also

asserts that any witness on character for peacefulness would

have been cumulative in light of testimony from Toohey’s ex-wife

about his character for peacefulness.

     We conclude that Toohey has not met his burden of

establishing that this error deprived him of evidence that was

“‘material and favorable to his defense’” and thus of

constitutional dimension.   United States v. Robaina, 

39 F.3d 858, 862

 (8th Cir. 1994) (quoting United States v. Valenzuela-

Bernal, 

458 U.S. 858, 873

 (1982) (the accused has a “duty to

make some showing of materiality”)); see also Taylor v.

Illinois, 

484 U.S. 400, 409

 (1988).

     This is not a case in which character evidence for

peacefulness went “to the heart of appellant’s defense.”     United

3
  The Government also argues that the Court of Criminal Appeals
incorrectly found that the military judge abused his discretion
by permitting inquiry into the child pornography offenses to
impeach witnesses attesting to Toohey’s character for
peacefulness. The Government took no action to timely contest
or certify the Court of Criminal Appeals’ finding that the
military judge erred, and we decline to address whether the
lower court was correct in finding error. See United States v.



                                 8
United States v. Toohey, No. 05-0127/MC

States v. Brown, 

41 M.J. 1, 4

 (C.M.A. 1994).    Toohey’s testimony

set forth a version of the facts reflecting that the victim was

the aggressor after consensual sex and that she reacted

violently to the fact that he was married.   According to Toohey

he struck her in response to her aggressive actions toward him.

This testimony was supported by testimony that Toohey was a

truthful person and by other evidence as to the victim’s actions

and conduct in a bar preceding their leaving together.    Toohey

was permitted to offer substantial evidence in support of his

core defense that the sexual activity between him and the victim

was consensual.    Thus, the ruling in issue did not infringe upon

Toohey’s constitutional rights.

     For nonconstitutional errors the government bears the

burden of showing “that the error did not have a substantial

influence on the findings.”   United States v. Clark, 

62 M.J. 195, 200

 (C.A.A.F. 2005) (citation and quotation marks omitted);

United States v. Walker, 

57 M.J. 174, 178

 (C.A.A.F. 2002)

(quoting Kotteakos v. United States, 

328 U.S. 750, 765

 (1946)).

We review the prejudicial effect of an erroneous evidentiary

ruling de novo.    United States v. Diaz, 

45 M.J. 494, 496

(C.A.A.F. 1997).   A four-part test is applied to determine

whether this error had a substantial influence on the findings:




Kreutzer, 

61 M.J. 293

, 295 n.2 (C.A.A.F. 2005) (citing United
States v. Grooters, 

39 M.J. 269, 273

 (C.M.A. 1994)).

                                  9
United States v. Toohey, No. 05-0127/MC

            1.    Was the Government’s case against
                  Toohey strong and conclusive?
            2.    Is the defense’s theory of the case
                  feeble or implausible?
            3.    What is the materiality of the
                  proffered testimony?
            4.    What is the quality of the proffered
                  defense evidence and is there any
                  substitute for it in the record of
                  trial?

United States v. Weeks, 

20 M.J. 22, 25

 (C.M.A. 1985) (citations

omitted).   Reversal is not required if the court determines that

the finder of fact would not have been influenced by the omitted

evidence.   United States v. Kaiser, 

58 M.J. 146, 149

 (C.A.A.F.

2003) (quoting United States v. Davis, 

29 M.J. 445

, 449-50

(C.M.A. 1988)).

     With respect to the assault charge, we conclude that the

proffered evidence about Toohey’s character for peacefulness

would have had no influence on the finder of fact.       The

Government’s evidence on the assault was countered only by an

implausible claim that the victim became aggressive and Toohey

responded in a reasonable manner to protect himself.      Toohey

admitted that he struck the victim –- a woman of far less

physical stature than Toohey.    The excessive violence

perpetrated upon the victim was graphically demonstrated by

photographs depicting her injuries and the severity of the

beating inflicted upon her.    The evidence of guilt with respect

to assault was overwhelming.    See United States v. Humpherys, 

57 M.J. 83, 93

 (C.A.A.F. 2002) (evidentiary error can be found


                                  10
United States v. Toohey, No. 05-0127/MC

harmless where the evidence of guilt is overwhelming).    The

overwhelming nature of the evidence was ultimately reflected in

civilian defense counsel’s closing argument, “I am telling you

that he is guilty of assault and battery.   You heard him on the

stand say, ‘I shouldn’t have hit her.   I hit her too hard.’”

      The evidence of peacefulness would have had no impact upon

the finding of guilty of rape.   The pivotal question on guilt

was when Toohey applied force and for what purpose, not whether

he did so.   Toohey’s admission that he struck the victim

minimized the materiality of character for peacefulness

evidence.    Evidence of peacefulness had little relevance to

whether he struck the victim before or after sexual penetration.

Even if character for peacefulness evidence might have had some

slight value, Toohey received that value when his ex-wife

testified that he had never been violent with her.   The members

obviously rejected the idea that Toohey was peaceful.

      We conclude that the additional character evidence for

peacefulness would have had no substantial influence on the

findings in this case and that Toohey was not prejudiced by the

military judge’s erroneous ruling.

B.   Speedy Post-Trial Review and Appeal.

      Toohey contends that the 2,240 days that elapsed between

the completion of his court-martial and the decision of the

Court of Criminal Appeals was unreasonable and denied him due



                                 11
United States v. Toohey, No. 05-0127/MC

process.   Toohey asserts he was prejudiced by the constant

changes of counsel during his appeal, by the conditions of his

post-trial confinement and by the negative impact this delay

would have upon his ability to defend himself at a rehearing.

The Government responds that Toohey’s due process rights were

not violated.   It asserts that Toohey’s appeal has not been

impaired and that his assertions of general prejudice are too

speculative to warrant relief.   We review de novo claims that an

appellant has been denied the due process right to a speedy

post-trial review and appeal.    United States v. Moreno, 

63 M.J. 129, 135

 (C.A.A.F. 2006) (citing United States v. Rodriguez, 

60 M.J. 239, 246

 (C.A.A.F. 2004); United States v. Cooper, 

58 M.J. 54, 58

 (C.A.A.F. 2003)).

     In Moreno, we again affirmed “that convicted servicemembers

have a due process right to timely review and appeal of courts-

martial convictions.”   

Id.

 at 135 (citing United States v.

Toohey (Toohey I), 

60 M.J. 100, 101

 (C.A.A.F. 2004)4; Diaz, 

59 M.J. at 37-38

).   We also set forth the framework for our

analysis of speedy post-trial review and appeal cases utilizing

the four factors set forth in Barker v. Wingo, 

407 U.S. 514, 530

(1972):    (1) the length of the delay; (2) the reasons for the


4
  While his case was pending review at the Court of Criminal
Appeals, Toohey sought extraordinary relief from this court
because of post-trial and appellate delay. United States v.
Toohey (Toohey I), 

60 M.J. 100

 (C.A.A.F. 2004), reports our
disposition of that request for extraordinary relief.

                                 12
United States v. Toohey, No. 05-0127/MC

delay; (3) the appellant’s assertion of the right to timely

review and appeal; and (4) prejudice.    Moreno, 

63 M.J. at 135

;

see United States v. Jones, 

61 M.J. 80, 83

 (C.A.A.F. 2005);

Toohey I, 60 M.J. at 102.     Concerning those factors, we stated:

           Once this due process analysis is triggered
           by a facially unreasonable delay, the four
           factors are balanced, with no single factor
           being required to find that post-trial delay
           constitutes a due process violation.
           Barker, 

407 U.S. at 533

 (“We regard none of
           the four factors identified above as either
           a necessary or sufficient condition to the
           finding of a deprivation of [due
           process].”); Simmons v. Reynolds, 

898 F.2d 865, 868

 (2d Cir. 1990) (“[N]o one factor is
           dispositive and all are to be considered
           together with the relevant circumstances.”).

                We analyze each factor and make a
           determination as to whether that factor
           favors the Government or the appellant. See
           Rheuark v. Shaw, 

628 F.2d 297, 303

 (5th Cir.
           1980) (calling for an ad hoc evaluation of
           the four Barker factors). We then balance
           our analysis of the factors to determine
           whether there has been a due process
           violation. Barker, 

407 U.S. at 533

           (“[C]ourts must still engage in a difficult
           and sensitive balancing process.”). No
           single factor is required for finding a due
           process violation and the absence of a given
           factor will not prevent such a finding.

Moreno, 

63 M.J. at 136

.     Using the analysis we developed in

Moreno, we turn to Toohey’s case.

1.   Length of the delay.

      When the matter of appellate delay in this case was

initially before this court on Toohey’s petition for

extraordinary relief, we examined this factor and concluded that


                                  13
United States v. Toohey, No. 05-0127/MC

“the aggregate delay facially appears to be unreasonable, even

for this serious contested case.”    Toohey I, 60 M.J. at 103.    We

adhere to that determination.   This 2,240-day delay is facially

unreasonable and we will proceed to review the remaining Barker

factors.

2.   Reasons for the delay.

      Here we look at each stage of the post-trial period, at the

Government’s responsibility for any delay and at any

explanations for delay including those attributable to Toohey.

It took 2,240 days from the end of Toohey’s trial until the

issuance of the Court of Criminal Appeals’ decision, a period of

over six years.   The 644 days between trial and the convening

authority’s action is excessive and unexplained.   Although the

record reflects a need for substitute authentication in the

absence of the military judge, it still took over a year to

prepare and authenticate this record.   It then took almost nine

additional months for the convening authority to act.   Nothing

in the record satisfactorily explains these delays.

      After the convening authority’s action, the record was not

received at the Court of Criminal Appeals for another 146 days.

This delay in performing what is essentially a clerical task is

wholly unexplained.   See United States v. Dunbar, 

31 M.J. 70, 73

(C.M.A. 1990) (referring to such delays as “the least defensible

of all” post-trial delays).



                                14
United States v. Toohey, No. 05-0127/MC

     The case was then under the control of the Court of

Criminal Appeals for 1,450 days before an opinion was issued by

that court.   The record reflects that some time was spent

gathering documents omitted from the record of trial.    This,

however, does not excuse that portion of the delay because

preparation of the record is a government responsibility that

should have been completed before the record left the trial

forum.   See Rule for Courts-Martial 1103.   The record also

contains eleven defense motions for enlargement of time within

which to file a brief.    Enlargement motions numbers four through

eleven each contained the same reason for the request:   “other

case load commitments.”   As we noted in reviewing similar

enlargements in Moreno, “there was no evidence demonstrating

that the enlargements were directly attributable to” Toohey:

           While appellate defense counsel’s caseload
           is the underlying cause of much of this
           period of delay, responsibility for this
           portion of the delay and the burden placed
           upon appellate defense counsel initially
           rests with the Government. The Government
           must provide adequate staffing within the
           Appellate Defense Division to fulfill its
           responsibility under the UCMJ to provide
           competent and timely representation. See
           Article 70, UCMJ, 

10 U.S.C. § 870

 (2000).
           Ultimately the timely management and
           disposition of cases docketed at the Courts
           of Criminal Appeals is a responsibility of
           the Courts of Criminal Appeals.




                                 15
United States v. Toohey, No. 05-0127/MC

Moreno, 

63 M.J. at 137

.      For the same reasons, we decline to

hold Toohey responsible for the delays requested by appellate

defense counsel to review and brief other cases.

       We also note that this case was fully briefed and pending

before the Court of Criminal Appeals for 601 days before a

decision was issued.   We acknowledge that this was a complex,

contested case.   While this delay was extensive, as noted in

Moreno, we approach this period of time with reasonable

deference and apply “a more flexible review of this period,

recognizing that it involves the exercise of the Court of

Criminal Appeals’ judicial decision-making authority.”    

Id. at 137

.

       In sum, the record lacks reasonable justification for this

overall period of delay, and this factor weighs heavily in favor

of Toohey.

3.   Assertion of the right to a timely review and appeal.

       In Moreno, although he did not object to delays or assert a

delay issue until his case was before this court, we did not

weigh this factor heavily against the appellant.   

Id. at 138

.

Toohey, however, has repeatedly asserted his right to timely

review and appeal.   On September 20, 2000, Toohey wrote the

Judge Advocate General requesting both relief for delay and

convening authority action within a reasonable time.   On October

19, 2000, Toohey requested the appointment of additional



                                 16
United States v. Toohey, No. 05-0127/MC

appellate defense counsel specifically because his case had been

delayed and claimed that there were several complex issues that

had been aggravated by the delay.      On February 14, 2001, Toohey

moved the Court of Criminal Appeals for relief and sentence

credit for inordinate post-trial delay.

        In his brief to the Navy-Marine Corps court, Toohey sought

relief for “inordinate post-trial delay” for the time between

trial and receipt of his case at the lower court.     On January

13, 2004, Toohey again requested that the lower court grant

appropriate relief in the form of deferment of his sentence

because of post-trial delay.    On February 18, 2004, Toohey

sought extraordinary relief from this court.     See Toohey I, 60

M.J. at 100.    Toohey also moved this court for extraordinary

relief in the nature of a writ of habeas corpus on June 18,

2004.

        Where the defendant has asserted his speedy trial right, it

is “‘entitled to strong evidentiary weight in determining

whether the defendant is being deprived of the right.’”        Moreno,

63 M.J. at 138

 (quoting Barker, 

407 U.S. at 531-32

).         This

factor weighs heavily in favor of Toohey.

4.   Prejudice.

        Our framework for analyzing prejudice under this fourth

factor considers three interests:      “‘(1) prevention of

oppressive incarceration pending appeal; (2) minimization of



                                  17
United States v. Toohey, No. 05-0127/MC

anxiety and concern of those convicted awaiting the outcome of

their appeals; and (3) limitation of the possibility that a

convicted person’s grounds for appeal, and his or her defenses

in case of reversal and retrial, might be impaired.’”       

Id.

 at

138-39 (quoting Rheuark v. Shaw, 

628 F.2d 297

, 303 n.8 (5th Cir.

1980), cert. denied, 

450 U.S. 931

 (1981)).     Oppressive

incarceration pending appeal relates to the substantive merit of

an appellant’s grounds for appeal.    We have determined that

Toohey suffered no prejudice from the military judge’s erroneous

ruling.   Thus, his incarceration was not lengthened by the delay

and he is in no worse position due to the delay.    See Cody v.

Henderson, 

936 F.2d 715, 720

 (2d Cir. 1991).

       The anxiety and concern subfactor involves constitutionally

cognizable anxiety that arises from excessive delay and we

“require an appellant to show particularized anxiety or concern

that is distinguishable from the normal anxiety experienced by

prisoners awaiting an appellate decision.”   Moreno, 

63 M.J. at 140

.   Toohey claims that he has suffered anxiety because he has

been assigned six appellate defense counsel over the years that

his case has been in the military appellate process.    However,

the appellate record of these proceedings reflects that Toohey

was represented by only three detailed appellate defense counsel

while his case was before the Court of Criminal Appeals.      In

large part, only two counsel represented Toohey, one filing the



                                 18
United States v. Toohey, No. 05-0127/MC

brief and assignment of error, and the other filing the reply

brief and presenting oral argument.   The third appellate defense

counsel appears to have only signed a motion.   Under other

circumstances, frequent changes in counsel may compound delay

and create cognizable anxiety under this subfactor.   In this

instance, however, the number of counsel who represented Toohey

at the lower court is not unusual in light of normal military

rotation policies.

     We have also considered Toohey’s claim that the “overly

restrictive and unsanitary conditions” of his confinement caused

him to suffer anxiety and concern.    Assuming the conditions were

as Toohey claims, those conditions would have been common to all

prisoners and not aggravated by the delay in this case.    Even if

we were to find that there was some anxiety or concern over the

conditions, it does not weigh heavily under this subfactor.

Similarly, the requirement that Toohey register as a sex

offender in the state of North Carolina upon his release from

confinement is not a form of anxiety related to the delay in

this case.   As we have found no basis upon which to question the

underlying conviction in this case, Toohey would have been

required to register upon his release from confinement

regardless of the delay.   See 

N.C. Gen. Stat. § 14-208.5-208

.13

(2006).




                                19
United States v. Toohey, No. 05-0127/MC

      The final subfactor, impairment of the ability to present a

defense at a rehearing, relates directly to whether an appeal on

a distinct substantive issue is found to be meritorious and

whether a rehearing has been authorized.    Because we have found

against Toohey on the substantive issue he asserted, this

subfactor is not present in this case.

      We conclude that Toohey experienced no prejudice from

oppressive incarceration, no particularized anxiety or concern

awaiting the outcome of his appeal, and no impairment of his

defense in that there will be no retrial.   This prejudice factor

therefore weighs against Toohey.

5.   Conclusion –- Barker Factors.

      As we noted in Moreno, “no single factor [is] required to

find that post-trial delay constitutes a due process violation.”

Moreno, 

63 M.J. at 136

 (citing Barker, 

407 U.S. at 533

).

However, in Moreno our balancing included consideration of the

conclusion that Moreno had experienced “oppressive

incarceration” and “constitutional anxiety.”   Id. at 139-40.     In

contrast, Toohey’s case presents us with the question of how to

strike this due process balance in the absence of any finding of

prejudice under the fourth Barker factor.    We believe that such

circumstances warrant a different balancing of the four factors.

Hence, where there is no finding of Barker prejudice, we will

find a due process violation only when, in balancing the other



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United States v. Toohey, No. 05-0127/MC

three factors, the delay is so egregious that tolerating it

would adversely affect the public’s perception of the fairness

and integrity of the military justice system.

      We have determined that the first three factors weigh

heavily in favor of Toohey:   unreasonably lengthy delay, no

justifiable reasons for the delay, and frequent assertion of the

right to speedy review.   The weight of these factors leads to

the conclusion that the delay in Toohey’s case is egregious.

Balancing these three factors against the absence of prejudice,

we hold that Toohey was denied his due process right to speedy

review and appeal.   However, before we address whether this

constitutional error was harmless beyond a reasonable doubt, we

examine the related issue of whether Toohey received a proper

review of his case under Article 66(c), UCMJ, by the lower

court.   Although separate from the appellate due process issue,

it has bearing on the resolution of whether this constitutional

violation was harmless beyond a reasonable doubt.

C.   Article 66(c), UCMJ, Relief for Post-Trial Delay.

      We specified a separate issue concerning whether the Court

of Criminal Appeals abused its discretion by denying relief

under Article 66(c), UCMJ, for unreasonable post-trial delay.

Toohey asserts that the lower court abused its discretion by

requiring that a case rise to the level of “most extraordinary”

before the court would consider exercising its unique Article



                                21
United States v. Toohey, No. 05-0127/MC

66(c), UCMJ, authority.   The Government responds that the lower

court did not abuse its discretion by looking to extraordinary

circumstances before determining that relief was appropriate.

We conclude that the Court of Criminal Appeals applied an

erroneous legal standard and thus abused its discretion.

Moreover, the lower court’s sentence appropriateness review was

conducted on the basis that no appellate due process violation

had occurred.

     Initially we pause to express our concern over the Court of

Criminal Appeals apparent conclusion that Toohey’s case is not

among “the most extraordinary of circumstances.”   Toohey, 60

M.J. at 710.    The delays in this case prior to docketing at the

Court of Criminal Appeals were extreme, unjustified, and

unexplained.    In fact, we have found the delays in this case,

considered in light of the reasons for the delay and Toohey’s

assertion of his rights, to be such that tolerating them would

adversely affect the public’s perception of the fairness and

integrity of the military justice system.   It is simply not

acceptable to diminish the importance of the convening

authority’s clemency powers and the unique nature of the appeal

of right under Article 66, UCMJ, by tolerating delays

approaching or exceeding two years before that clemency

consideration or before the appeal of right is commenced.




                                 22
United States v. Toohey, No. 05-0127/MC

     Therefore, by requiring a case to achieve “most

extraordinary of circumstances” level before the Court of

Criminal Appeals would exercise its Article 66(c), UCMJ,

authority, the court below abused its discretion.   In United

States v. Tardif, 

57 M.J. 219, 224

 (C.A.A.F. 2002), we affirmed

the power of a Court of Criminal Appeals to grant sentence

relief under Article 66(c), UCMJ, where there has been

unreasonable post-trial delay.   The exercise of that power does

not require a finding of prejudice, nor did our Tardif decision

establish any criteria limiting the exercise of that power to

only the “most extraordinary” cases.

     The essential inquiry remains appropriateness in light of

all circumstances, and no single predicate criteria of “most

extraordinary” should be erected to foreclose application of

Article 66(c), UCMJ, consideration or relief.   See United States

v. Bodkins, 

60 M.J. 322, 324

 (C.A.A.F. 2004) (“the court may

consider the absence of a defense request for action as one

factor among other considerations in assessing the impact of

delay in a particular case, but it may not elevate that factor

into the conclusive basis for denying relief by using the mere

absence of a request to find waiver”).

     We are also concerned with the lower court’s “see also”

reference to Article 59(a), UCMJ, 

10 U.S.C. § 859

(a) (2000), in

connection with its Article 66(c), UCMJ, powers.    See Toohey, 60



                                 23
United States v. Toohey, No. 05-0127/MC

M.J. at 710.    This citation gives rise to a question about

whether the Court of Criminal Appeals continues to look for

prejudice as a predicate to granting relief under Article 66(c),

UCMJ.    As we made clear in Tardif, the Court of Criminal

Appeals’ responsibility to affirm only so much of the sentence

as should be approved “do[es] not implicate Article 59(a).”    57

M.J. at 224.

        To assure that Toohey receives the full and proper Article

66(c), UCMJ, review to which he is entitled, we will remand this

case to the Court of Criminal Appeals.     See Bodkins, 

60 M.J. at 324

.

D.   Relief for the Due Process Violation.

        Where we find constitutional error, we grant relief unless

this court is convinced beyond a reasonable doubt that the

constitutional error is harmless.      See United States v.

Kreutzer, 

61 M.J. 293, 298

 (C.A.A.F. 2005) (citing Chapman, 

386 U.S. at 24

).    The government bears the burden of demonstrating

that a constitutional error is harmless beyond a reasonable

doubt.    United States v. Cendejas, 

62 M.J. 334, 337

 (C.A.A.F.

2006) (citing United States v. Simmons, 

59 M.J. 485, 489

(C.A.A.F. 2004)); United States v. Grooters, 

39 M.J. 269, 273

(C.M.A. 1994) (quoting Arizona v. Fulminante, 

499 U.S. 279, 296

(1991)).    We apply a de novo standard of review to the question

of harmlessness beyond a reasonable doubt.     Cendejas, 

62 M.J. at 24

United States v. Toohey, No. 05-0127/MC

337; Kreutzer, 

61 M.J. at 299

; United States v. Grijalva, 

55 M.J. 223, 228

 (C.A.A.F. 2001) (citing 2 Steven Childress &

Martha Davis, Federal Standards of Review § 7.03, at 7-10 (3d

ed. 1999)).   Where we cannot say beyond a reasonable doubt that

deprivation of the due process right to a speedy review and

appeal is harmless, we must consider what relief, if any, to

afford.   See Jones, 

61 M.J. at 86

.

     Considering the totality of the circumstances in this case,

we cannot be confident beyond a reasonable doubt that this delay

has been harmless.   Although we do not presume prejudice based

on the length of the delay alone, we are mindful of the

egregious delay in this case and the adverse impact such delays

have upon the public perception of fairness in the military

justice system.

     More importantly, had Toohey not waited roughly six years

before the lower court rendered its decision, this court could

have conducted its review and returned the case to the lower

court for a proper review under Article 66(c), UCMJ, in time for

the lower court to afford Toohey meaningful relief, if

warranted.    However, given the delay, even after determining

that Toohey has a meritorious claim involving appellate error

that warrants remand and a new sentence appropriateness review

under Article 66(c), UCMJ, meaningful options for relief, if




                                 25
United States v. Toohey, No. 05-0127/MC

appropriate, are now limited because Toohey has served his

adjudged and approved confinement.

     Therefore, we conclude that the appellate due process

violation is not harmless beyond a reasonable doubt and Toohey

is entitled to consideration of relief for the due process

violation.   Because we are returning this case to the Court of

Criminal Appeals, we will not attempt to craft any relief

ourselves and we leave that determination to the court below.

In Moreno, we provided a non-exclusive range of options as

relief for due process, speedy post-trial violations.    

63 M.J. at 143

.   In addition to reviewing the delay in relation to

sentence appropriateness, the Court of Criminal Appeals should

afford the parties the opportunity to address the issue of

meaningful relief in light of the due process violation and the

circumstances of this case.

                              DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is set aside.     The record is returned to the

Judge Advocate General for remand to the Court of Criminal

Appeals for action not inconsistent with this opinion.    After

which, Article 67(a), UCMJ, 10 U.S.C. 867(a) (2000), shall

apply.




                                 26
United States v. Toohey, No. 05-0127/MC


       CRAWFORD, Judge (dissenting):

       Once again the majority fails to apply Supreme Court

precedent in interpreting the same or a similar statute or rule.

See, e.g., United States v. Cary, 

62 M.J. 277, 279

 (C.A.A.F.

2006) (Crawford, J., concurring in the result) (the Rules of

Courts-Martial are based on the Federal Rules of Criminal

Procedure and we should follow guidance of our superior court in

applying or interpreting rules).   Thus, I respectfully dissent

from this Court’s continuing pattern of ignoring or refusing to

follow the precedent of our superior court.

       Based on Ohler v. United States, 

529 U.S. 753, 760

 (2000),

and Luce v. United States, 

469 U.S. 38, 43

 (1984), I would hold

that any issue regarding the rebuttal of character evidence for

peacefulness by the Government was not preserved for appeal when

Appellant did not submit his character evidence mentioned at the

time of the motion.   This case is similar to Luce, where the

Supreme Court held that an appellant who did not testify may not

challenge on appeal an in limine ruling as to the admissibility

of a prior conviction and its use for impeachment under Fed. R.

Evid. 609(a).   Luce, 

469 U.S. at 43

.   The appellant in Ohler

also lost an in limine motion and sought to take the sting out

of a prior conviction by testifying and minimizing the

conviction that the judge ruled admissible under Fed. R. Evid.

609.   Ohler, 

529 U.S. at 755

.   Again, the Supreme Court held
United States v. Toohey, No. 05-0127/MC


that the appellant’s action in testifying about the prior

conviction precluded him from challenging the in limine ruling

on the admission of the prior conviction.   

Id. at 755

.   In Luce,

the Supreme Court reasoned that the judge needs to make the

ruling in the context of what would happen at trial, otherwise,

the record is incomplete, and a “reviewing court is handicapped

in any effort to rule on the subtle evidentiary questions

outside a factual context.”   Luce, 

469 U.S. at 41

.

     An appellate court has no way of knowing whether the

government would actually seek to introduce such evidence if its

case were strong.   The government may elect not to use arguably

inadmissible evidence.   As the case here now stands, this Court

is encouraging defense counsel to “create” appellate error, even

when the defense may not want to admit the evidence.

     Additionally, I respectfully dissent from the majority’s

“find[ing of an] unreasonable lengthy delay.”   See United States

v. Moreno, 

63 M.J. 129, 144

 (C.A.A.F. 2006) (Crawford, J.,

concurring in part and dissenting in part).




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